By Jonathan Cain

Starting July 1, Virginia will set its sights on unsolicited bulk e-mail, known as spam, with civil and criminal penalties under new laws that extend the reach of the Virginia courts to businesses and homes worldwide. Under the new laws, Virginia is attempting to regulate bulk e-mail, regardless of where it originates or is received, so long as in the course of transmission it uses a computer or computer network located in the state.

In so doing, however, the state legislature handed private Internet e-mail service providers the right to determine, by corporate policy, which practices violate the law.

It is estimated that one-half of the world’s Internet traffic passes through computer networks located in Virginia during the course of delivery. Probably no other state could have enacted laws with more potential to affect the rights and responsibilities of Internet users.

Responding to complaints from major Internet service providers in Northern Virginia, whose networks and customers were being cluttered with bulk e-mail, the Virginia legislature first amended the state’s Computer Crimes Act to specifically include Internet services and electronic mail and message services. The act now makes it illegal to use a computer or network to transmit unsolicited bulk e-mail in violation of the policies set by the e-mail service provider.

The act allows anyone to recover civil damages for injuries caused by the transmission of bulk e-mail, including the actual damages (which probably will be nominal) and $10 per unsolicited e-mail or $25,000 per day. In addition, if the e-mail sender falsifies routing information so as to hide the source of the e-mail, criminal charges may be brought.

The legislature also amended its “long-arm” statute, the law that gives courts the right to assert their jurisdiction over non-residents, to reach out-of-state purveyors of bulk e-mail.

If the e-mail sender uses a computer or network located in Virginia, the law considers the sending of the e-mail as having taken place within Virginia. Because most of the nation’s largest Internet service providers route traffic through the state, Virginia’s long-arm statute has a long reach indeed.

In taking aim on spamming, however, Virginia protected its in-state Internet service providers. E-mail service providers are exempt from liability for damages under the new laws if they are merely intermediaries in the transmission of spam. They also are exempt from liability for action they take in trying to halt the unauthorized use of their networks by bulk e-mailers.

Thus, the e-mail service providers have won the right to pursue bulk e-mailers, but are exempt from responsibility if they elect to take no action against them or if their action to halt unauthorized bulk e-mail harms legitimate users. The service providers also can send unwanted bulk e-mail solicitations to their own customers without liability.

The act also has created a fertile new ground for litigation over what constitutes as unsolicited bulk e-mail. Rather than creating standards to define impermissible e-mail activity, the legislature ducked the hard issue and left it to the e-mail service providers.

It is only a violation of the act if the e-mail activity contravenes the policies established by the e-mail service provider. Thus, the spamming activity may be illegal in one case, but not in another, merely because it violates the policies of the first e-mail service provider, but not the policies of the second service provider.

The act also does not solve the dispute when the bulk e-mailer transmits mail in conformance with the policies of his own service provider, but addresses it to recipients who use another provider whose policies the bulk e-mail contravenes.

Finally, it remains to be seen whether the Virginia law will survive a near certain constitutional challenge. State long-arm statutes, such as that under which Virginia has tried to bring out-of-state bulk e-mailers under the jurisdiction of its courts, can be enforced only if they do not violate the due process clause. Courts that have considered whether a state can assert jurisdiction over an out-of-state resident based solely on Internet solicitations have had differing results, and the Supreme Court has yet to rule on the issue.

In the case of the new Virginia law, the challenge is even greater, because the bulk e-mailer does not have any control over how traffic is conveyed over the Internet once the messages are sent. Courts may not agree that the bulk e-mailer should be reasonably expected to be called to answer a legal complaint in Virginia merely because the Internet directs traffic through computers located in the state.

Jonathan Cain chairs the Technology Practice Group of Mays & Valentine LLP, McLean, Va. His e-mail address is jcain@maysval.com.